Haryana

StateCommission

CC/485/2017

VANDNA BHARGAVA - Complainant(s)

Versus

T.G.BUILDWELL - Opp.Party(s)

DEEPAM RAGHAVA

21 Nov 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

Date of Institution:10.08.2017

Date of final hearing:21.11.2023

Date of pronouncement:24.11.2023

 

Consumer Complaint No.485 of 2017

 

IN THE MATTER OF

 

Vandna Bhargava Wife of Pawan Bhargava, R/o House No.604, Goldfinch, Nyati Enclave, Mohammad Wadi, Hadapsar, Pune-411060.

    ….Complainant.

Through counsel Mr.Deepam Raghav, Advocate

 

Versus

 

1.      M/s T.G. Buildwell Pvt. Ltd., site address Tivoli Holiday Village, Sector-5, Dharuhera, District Rewari (Haryana) through its Managing Director.

2.      M/s T.G. Buildwell Pvt. Ltd., Tivoli Garden Hotel, near Chattarpur Mandir Road, New Delhi-110030, through its Managing Director.

….Opposite parties.

Through counsel Mr. Akshat Mittal, Advocate

 

 

Present:-    Mr. Deepam Raghav, counsel for the complainant.

                   Mr. Akshat Mittal, counsel for the opposite parties.

CORAM:   Mr. S.C. Kaushik, Member.
 

 

O R D E R

 

S.C. KAUSHIK, MEMBER:

 

                   The brief facts giving rise for the disposal of the present complaint are that the opposite parties (“OPs”) floated a residential project under the name and style of “Tivoli Holiday Village” situated at Sector-5, Daruheda, District Rewari (Haryana). Complainant booked a residential apartment having super area of Rs.153.29 sq. mtrs. on 07.06.2008 by paying an amount of Rs.5,00,000/- in the abovesaid project and was allotted an apartment bearing No.3B-1004, Tower No.TG-V vide allotment letter dated 11.08.2008. Total sale consideration of the said apartment was Rs.40,447/- per sq. mtr. which comes to Rs.60,00,000/- in total. Complainant paid total amount of Rs.17,50,000/- to the OPs on different dates as per their demands. Apartment Buyer’s Agreement was also executed between the parties on 28.08.2008. As per clause-15 of the said agreement, the possession of the unit shall be delivered to the complainant within 30 months, failing which OPs are liable to pay Rs.54/- per sq. mtr. per month to the complainant for delay in offering the possession. As per the terms and conditions of the said agreement, possession of the said apartment was to be delivered by the year, 2011. It is further alleged by the complainant that OPs not even failed to deliver the possession as per Buyer’s Agreement, but also failed to construct the project. Complainant also made several requests/correspondence with the OPs after the stipulated date, but they only kept giving assurances. He also served legal notice dated 05.07.2017 upon the OPs regarding possession of apartment and compensation on account of delay in handing over the possession, but they did not reply to the same. Thus, there was deficiency in service on the part of the OPs. The complainant prayed that OPs be directed to refund deposited amount of Rs.17,50,000/- along with interest @ 9% p.a., to pay Rs.54/- per sq. mtr. Per month from the year 2011 till realization, to pay Rs.2,00,000/- as compensation for mental tension and harassment and Rs.1,00,000/- as compensation for unfair trade practice as well as Rs.5,500/- as litigation expenses.

2.                Notice of the complaint was issued against the Ops, upon which they appeared and filed their written version submitted therein that the complaint is not maintainable as the complainant is not consumer but he is investor who applied for unit in question for earning benefits and not for the residential purpose of his own. However, it was admitted that the complainant booked a studio apartment having super area of 153.29 sq. mtrs. on 07.06.2008 in their project and apartment bearing No.3B-1004, Tower No.TG-V was allotted to complainant vide allotment letter dated 11.08.2008 for total sale consideration of Rs.60,00,000/-. It was also admitted that Apartment Buyer’s Agreement dated 28.08.2008 was executed between the parties. The complainant had opted ‘Direct Payment Plan’. As per the agreement, the possession was to be delivered within 30 months from the date of start of construction of particular tower in which allotment/booking was made subject to force majure. It is submitted that complainant himself was a defaulter in making payments and as per the agreement, the amount deposited shall not be refunded and shall be forfeited in case the complainant makes defaults in payment. It is further submitted that the OPs have sent the agreement to the complainant for signature, but the complainant neither signed them nor returned back to OPs regarding which OPs also sent letter dated 12.06.2010 to the complainant, but he failed to do the same. Further as per the agreement, in case complainant failed to execute and return the said agreement within 30 days, the allotment shall be treated as cancelled. It is further submitted that delay in offering the possession had occurred due to the reasons beyond the control of OPs. Ops further submitted that the complainant himself have defaulted in making payments as the total sale price of the unit was Rs.60,00,000/- and he had paid only Rs.17,50,000/- towards the total cost of the unit. Other allegations made in the complaint were also denied. Thus, there was no deficiency in service on the part of the Ops.

3.                When the complaint was posted for recording evidence of the parties, learned counsel for complainant has tendered in evidence affidavit of Vanadana Bhargva as Ex.CA vide which she has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-7 and closed the evidence on behalf of complainant.

4.                On the other hand, learned counsel for OPs has tendered into evidence affidavit of Shri Amit Sharma, legal representative as Ex.RA alongwith other documents Ex.R-1 to Ex.R-7 and closed the evidence on behalf of Ops.

5.                The arguments have been advanced by Mr. Deepak Raghav, learned counsel for the complainant and Mr. Akshat Mittal, learned counsel for Ops. With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint have been properly perused and examined.

6.                As per the basic averments raised in the complaint including the contentions raised by the learned counsel for the complainant, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he had already deposited, alongwith interest or not? 

7.                While unfolding his arguments, it has been argued by Mr. Deepam Raghav, learned counsel for the complainant that as far as the allotment letter dated 11.08.2008 (Ex.C-1) is concerned, it is not in dispute. Execution of the Apartment Buyer’s Agreement dated 28.08.2008 (Ex.C-3) is concerned, the same could not be disputed. It could also not be disputed that the complainant had paid Rs.17,50,000/- (Ex.C-2 colly) to the Ops. It is also not controverted that the total sale consideration of the said flat was Rs.60,00,000/.  Complainant has already deposited Rs.17,50,000/- as per payment schedule, but OPs failed to offer the possession of apartment in question. In these circumstances, the complainant had no other option, but, to seek the refund of the amount alongwith interest, which she had already paid, as they do not think that OPs will be able to put him into possession of the apartment as he wish to get.

8.                On the other hand, Mr. Akshat Mittal, learned counsel for Ops has argued that complaint is not maintainable as the complainants are not consumer but she is an investor who applied for a studio apartment in question for earning benefits and not for the residential purpose of her own. He further argued that complainant booked studio apartment having super area of 153.29 sq. mtrs. on 07.06.2008 in their project and apartment bearing No.3B-1004, Tower No.TG-V was allotted to the complainant vide allotment letter dated 11.08.2008 for total sale consideration of Rs.60,00,000/-. He further argued that Apartment Buyer’s Agreement dated 28.08.2008 was sent to the complainant for signature, but the complainant neither signed it nor returned back to OPs regarding which OPs also sent letter dated 12.06.2010 to the complainant, but he failed to do the same. Moreover, as per the terms incorporated in the said agreement, in case complainant failed to execute and return the said agreement within 30 days, the allotment shall be treated as cancelled. He further argued that the complainant had opted ‘Direct Payment Plan’. As per the agreement, the possession was to be delivered within 30 months from the date of start of construction of particular tower in which allotment/booking was made subject to force majure. However, the complainant himself was a defaulter in making payments and as per the agreement, the amount deposited shall not be refunded and shall be forfeited in case the complainant makes defaults in payment as the total sale price of the unit was Rs.60,00,000/- and he had paid only Rs.17,50,000/- towards the total cost of the unit. Finally, he argued that there was no deficiency in service on the part of the Ops and prayed for dismissal of the complaint.

9.                In view of the above submissions and after careful perusal of the entire record, it stands proved that upon floating a project by the OPs-builders under the name & style of “Tivoli Holiday Village” situated at Sector-5, Dharuheda, District Rewari (Haryana), the complainant purchased a residential unit, which was later on converted into studio apartment (residential-cum-commercial unit). Apartment bearing No.3B-1004, Tower No.TG-V having super area of 153.29 sq. mtrs. was allotted to complainant in the said project. Total sale consideration of the said apartment was Rs.60,00,000/- out which complainant has already paid an amount of Rs.17,50,000/-in total to the OPs as per their demands on different dates. Apartment Buyer’s Agreement which was executed on dated 28.08.2008 also stands proved, but to the utter surprise of this Commission it is quite baffling to note as to how inspite of the fact that the complainant had deposited a huge amount, but possession was not offered by the OPs in stipulated period. However, as per the version of complainant, he did not pay remaining amount as the construction work was not carried out at the site. Though, learned counsel for OPs has argued at the time of arguments that it is a commercial project and complainant does not fall under the definition of consumer and still OPs are ready to hand over the possession, but complainant himself refused to take over the same. In this regard it is pertinent to mention here that as the apartment buyer’s agreement dated 28.08.2008, which was executed by OPs, it is specifically mentioned that in case OPs failed to deliver the possession of apartment within stipulated period, in that eventuality, the amount so deposited will be refunded by OPs. As such, there was a clear breach of terms and conditions of the Apartment Buyer’s Agreement on part of the OPs. It is the normal trend of the developers that a developer would collect their hard-earned money from the individuals and would invest these funds in other projects and as a result thereof the project for which the home-buyers have deposited their hard-earned money is not completed.  As such, this Commission is of the considered opinion that there is deficiency in service on the part of OPs and thus, the complainant is well within her legal rights to receive refund of the amount of Rs.17,50,000/-  (Rs. Seventeen lacs fifty thousand only) which she had already deposited with the OPs. Even otherwise also, there is a strong element of physical and mental agony caused to the complainants for her having invested a huge amount and due to not having been given possession of the apartment as per Apartment Buyer’s Agreement, she had to knock at the door of this Commission even for seeking refund of the amount. In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

10.              As regards the rate of interest to be awarded, it may be relevant to keep the following factors into consideration. Keeping in view the recent periodic revision of repo rate by Monetary Policy Committee of Reserve Bank of India and consequent upward revision of Marginal Cost of Lending Rate (MCLR) by the Nationalized Banks, there has been an increase in lending rate by the Nationalized banks. Accordingly, it would in considered view of this Commission, be just fair and reasonable to award 9% as rate of interest to the complainant.

11.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the OPs are directed to refund the amount of Rs.17,50,000/-  (Rs. Seventeen lacs fifty thousand only) alongwith interest @ 9% per annum to the complainants from  the date of their respective deposits till realization.  In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainants would be entitled to get the interest @ 12% per annum, for the defaulting period. The complainant is also entitled to an amount of Rs.50,000/- (Rs. Fifty Thousand Only) on account of compensation for mental and physical agony.  In addition, the complainants are also entitled to an amount of Rs.10,000/- (Rs. Ten thousand only) as litigation charges. It is also made clear that in case of non-compliance of the aforesaid order by the OPs, the provisions enshrined under section 72 of the C.P. Act would also be attractable.

12.              Application(s) pending, if any, stand disposed of in terms of the aforesaid order.

13.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for perusal of the parties.

14.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 24^th November, 2023

 

                                                                                                            S.C Kaushik,

Member        

Addl. Bench-III